REAL "Constitutional Conservative" Wouldn't Support Unconstitutional Federal Tort Reform


What makes a real "Constitutional conservative?" Rep. Michele Bachmann claims the mantle in a Daily Caller post and sets forth some elements of her definition, such as the classic Reagan-era "three-legged stool;" a limited government with specific, enumerated powers; and respect for states' rights under the Tenth Amendment. But Joseph Lawler of the American Spectator brushes off Rep. Bachmann's attempt in a few words: "With all due respect to Rep. Bachmann, it's pretty clear that she is not the standard bearer for constitutional conservatism... Insofar as Michele Bachmann supports ideas and policies that would radicalize the Republican Party, she's less of a constitutional conservatives than the Pauls and other likeminded members of Congress."

I think Lawler owes Rep. Bachmann more specifics to support his objection, so I will propose one, the one which is relevant to this website and cause. Rep. Bachmann is not a true-blue, first class "Constitutional conservative" because she is a co-sponsor of a bill that is clearly an unconstitutional exercise of federal power at the hands of the states, namely, H.R. 5, the "HEALTH Act," which would pre-empt all state tort law over health care and medical malpractice lawsuits. There can't be any remaining doubt of the bill's unconstitutionality, considering the overwhelming authority for that position, as expressed by scholars, including those usually favorably disposed to tort reform. For starters, Rep. Ron Paul, to whom Lawler referred, has clearly stated his opposition to any federal medical malpractice bill.

Prof. Randy Barnett, perhaps the premier "Constitutional conservative" scholar in America today, says H.R. 5 and other federal tort reform bills are unconstitutional. No one understands the limitations of the Commerce Clause and the constitutional protections over states' rights like Prof. Barnett, and his condemnation of federal tort reform bills is clear:

But tort law -- the body of rules by which persons seek damages for injuries to their person and property -- has always been regulated by states, not the federal government. Tort law is at the heart of what is called the "police power" of states... Indeed, if Congress now can regulate tort law, which has always been at the core of state powers, then Congress, and not the states, has a general police power. This issue concerns constitutional principle, not policy: the fundamental principle that Congress has only limited and enumerated powers, and that Congress should stay within these limits.

Prof. Barnett is joined in his opinion by fellow conservatives and tort reform advocates, namely Prof. Ilya Somin and longtime constitutional scholar and pro-lifer John Baker; pro-tort reformers like Walter Olson and Ted Frank; and conservative legal scholar Prof. Jonathan Adler. Tea Party Patriots co-founder Mark Meckler also agrees. So does the nonartisan National Conference of State Legislators, which wrote to Congress to express its outrage over H.R. 5 and federal tort reform in general. Recently, Sen. Tom Coburn opined that a federal tort reform law would violate states' rights. Rep. Bachmann's co-sponsorship of H.R. 5, despite the judgment of some of the most respected authorities among Tea Party activists, undercuts her claim of being a "Constitutional conservative."

At the least, conservatives and Tea Partiers should agree that a "Constitutional conservative" honors and protects all of the amendments in the Bill of Rights, including the 7th Amendment right to a civil jury trial and its "uncle," the 10th Amendment.

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This page contains a single entry by Andrew Cochran published on July 11, 2011 11:01 PM.

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